No. 93-576 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE MARRIAGE OF 

MARGARET HAYES, 

Petitioner and Respondent, 

ROBERT HAYES, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and far the County of Valley, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert D. Morrison, Morrison Law Firm, Whitefish, 

Montana 

For Respondent: 

Matthew W. Knierim, Christoffersen & Knierim, 

Glasgow, Montana 
Justice Fred S. Weber delivered the Opinion of the Court. 

This is an appeal from the amended Findings of Fact and 

Conclusions of Law and Dissolution in a marriage dissolution filed 

in the District Court for the Seventeenth Judicial District, Valley 

County. We reverse and remand. 

We restate the issue on appeal: 

Did the District Court err in its amended Findings of Fact and 

Conclusions of Law and Dissolution by relying on an oral property 

agreement between the parties? 

The petitioner wife brought this action for dissolution on 

July 18, 1990. The husband filed his response on October 26, 1990. 

The matter of the dissolution of the parties was set for trial on 

May 26, 1992. At 9:00 a.m. on the morning of the trial, the 

parties agreed to attempt to settle. Throughout the day, 

negotiations between the parties continued and at 4:55 p.m. the 

court reconvened for the purpose of considering the terms of the 

settlement. 

The court indicated that judgment would be entered once the 

stipulated oral settlement agreement had been reduced to writing 

and resubmitted to the court. The oral agreement did not contain 

specific property valuations nor was it ever reduced to writing. 

Despite counsel's failure to reduce the agreement to writing, the 

court entered its Findings of Facts and Conclusions of Law and 

Dissolution without that formal statement of the agreement. 

This Court on appeal held that the settlement agreement needed 

to be more specific to avoid the type of controversy presented in 

2 
this case and that the record did not establish an agreement 

between the parties. Marriage of Hayes (1993) , 256 Mont. 266, 268, 

846 P.2d 272, 273 (Hayes I). The cause was remanded to the 

District Court which issued an Amended Findings of Fact and 

Conclusions of Law. The amended version contained parts of the 

transcript verbatim but no written version of the parties' 

agreement. 

In its amended findings, the court determined that the 

settlement was not unconscionable and that it was not necessary 

that a written agreement be entered into. The court indicated that 

it was correcting a "clerical error" in the original document 

issued by the court. No hearing was conducted on remand and no 

evidence was presented to the court in support of the amended 

findings . 

The husband appeals the amended findings of the court as 

inappropriate because of a lack of formal written agreement between 

the parties. 

Did the District Court err in its amended Findings of Fact and 

Conclusions of Law and Dissolution by relying on an oral property 

agreement between the parties to the underlying dissolution? 

Appellant husband contends that just as the initial findings 

were inadequate because they were not based upon a written 

agreement, so too are the amended findings inadequate because the 

agreement was never reduced to writing on remand. The husband 

argues that the court's amended findings were incorrectly taken 
from the record and that he never had a chance to review the 

findings or approve them. Further, the husband argues that the 

required whether a valid agreement exists between the parties or 

not. 

Respondent wife argues that the court's responsibility in a 

divorce proceeding is to determine whether or not the agreement 

made by the parties is llunconscionable.ll According to the wife, 5 

40-4-201(2), MCA, makes the terms of an agreement binding upon the 

court unless it concerns support, custody or visitation. The wife 

contends that all the court could do in this instance is to 

determine whether the agreement was unconscionable. 

We review a ~istrict Court's interpretation of the law as to 

whether it is correct. Steer Inc. v. Department of Revenue (1990) , 

245 Mont. 470, 803 P.2d 601. This case was remanded once because 

no written agreement had been entered into the record. Haves, 256 

Mont. at 268, 846 P.2d at 273. Since Hayes I was decided, we 

decided another case that, relying on Haves I, specifically 

interpreted 5 40-4-201(1), MCA, as requiring a written agreement. 

See Simms v. Simms (1994), Cause No. 93-110, handed down March 28, 

1994. We stated in ~imms: 

Section 40-4-201, MCA, provides that the district court 

is bound by the parties' separation agreement in matters 

of property distribution and maintenance if the court 

finds that the separation agreement is not 

unconscionable. However, the only separation agreement 

referred to in the statute is the written separation 

agreement. Absent a written separation agreement, there 

is nothing for the district court to review and on which 
to make a finding regarding conscionability. Under such 

circumstances, the district court has no alternative but 

to try the case on the merits and to dispose of the 

property, maintenance, support, custody and visitation 

issues on the basis of the applicable statutory criteria, 

evidenced by the entry of appropriate findings of fact, 

conclusions of law and judgment. (Emphasis in original. ) 

Simms, page 7 and 8, slip opinion. 

Our statute clearly requires a written agreement: 

40-4-201. Separation agreement. (1) To promote amicable 

settlement of disputes between parties to a marriage 

attendant upon their separation or the dissolution of 

their marriage, the parties may enter into a written 

separation asreement containing provisions for 

disposition of any property owned by either of them, 

maintenance of either of them, and support, custody, and 

visitation of their children. (Emphasis added.) 

Section 40-4-201(1), MCA. The parties in this case do not have a 

written agreement. All that exists in the record is a transcript 

of oral stipulations concerning property which, as we stated in 

r S imms are insufficient for court determine whether the 

agreement itself is unconscionable. Further, appellant alleges 

that the court's transfer of those stipulations into its findings 

resulted in several errors. 

We conclude the District Court erroneously relied upon the 

oral agreement between the parties. The District Court here had no 

alternative but to try the case on the merits and to dispose of the 

property and other issues on the basis of the applicable statutory 

criteria, and the rule set forth in Simms, evidenced by the entry 

of appropriate findings and conclusions. We hold that the District 

Court erred in its amended Findings of Fact and Conclusions of Law 

and Dissolution by relying on an oral property settlement agreement 
between the parties to the underlying dissolution. 

Reversed and remanded. 

I 

I 
March 31, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Robert D. Morrison 

Morrison Law Firm 

P.O. Box 1929 

Whitefish, MT 59937 

Matthew W. Knierim 

CHRISTOFFERSEN & KNZERIM, P.C. 

P.O. Box 29 

Glasgow, MT 59230 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAW OF. MONTANA